Frequently Asked Questions about DREAM Act Deferred Action

3 Jul

Why do you call it “DREAM Act Deferred Action?”

It is true that the new program is not the DREAM Act.  However, it does have its origin in the DREAM Act.  The DREAM Act is legislation in Congress that would, if passed, allow individuals who were brought to this country as children, have grown up in the U.S. and succeeded in school to obtain permanent resident status.  It has never been passed by both houses of Congress as necessary for Congress to pass a law.  It was last considered in 2010, when it passed the House of Representatives.  However, the Senate could not break a Republican-led filibuster and 55 votes in favor were not enough for passage.  President Obama had said that he would sign the DREAM Act if Congress passed it.  In light of the failure of the DREAM Act in Congress and in the face of unrelenting pressure from activist undocumented youth, the administration acted unilaterally to provide a measure of relief to the DREAMers.  Deferred action under this new program is meant to provide a benefit to the same group of people who would have benefited from the DREAM Act.  The DREAM Act remains before the Congress.

What is deferred action?

Deferred action is discretionary authority used by the Department of Homeland Security (DHS) to provide formal acknowledgement that the DHS does not consider their removal a priority.  It is an affirmative statement from DHS that it does not intend to remove a particular individual at this time and that such individual will be allowed to remain in the U.S. through the discretion of the government.  When the department decides to give an individual deferred action, that individual may also apply for employment authorization for the period of deferred action.

Where does the government get authority to grant deferred action?

Deferred action is a function of prosecutorial discretion.  Prosecutorial discretion is the concept that law enforcement officers and agencies cannot possibly punish or enforce all violations and that such agencies are forced to prioritize those violators that they will focus their attention upon.  With limited resources, agencies must pick and choose those that they will prosecute or, in the case of immigration, seek to remove.  Rather than conducting enforcement activities in a random and haphazard manner, DHS has provided a list of enforcement priorities, such as those who present a risk to the national security or public safety, convicted criminals, those who have a history of immigration fraud or egregious violations of immigration law, and recent entrants to the U.S.  At the same time, DHS has identified those who are a lower priority for removal.  Deferred action for certain undocumented youth is recognition that the DHS places a low priority on removal of DREAMers.

Can I get a green card through this program?

No.  This program does nothing to alter the requirements for permanent residence (green cards) in the U.S.  Only Congress can provide a means of obtaining residency and citizenship and this program does not provide any form of permanent status or promise of future status.

So if it is not residence, exactly what is it?

It is a determination from immigration that they do not intend to remove a particular individual and that such individual can obtain employment authorization while they are here in the U.S.  It is subject to revocation by this or any future administration.

Can I apply today?

No, the Citizenship & Immigration Service (CIS) has 60 days to come up with a procedure to accept applications and will not accept applications until such a procedure has been established.  Individuals currently in removal proceedings or with removal orders may apply at this time with ICE.

Is this amnesty?

No.  The word amnesty has been horribly abused by those who wish to restrict immigration, who call anything short of mass deportation “amnesty.”  In immigration, “amnesty” refers to the 1986 Immigration Reform and Control Act (“IRCA”) which gave residence to a large class of people who had entered the U.S. before 1982.  This legislation provided residence to many who entered the country illegally as adults and did not satisfy any education requirements.  The new program has stricter requirements and provides fewer benefits.  It is limited to those who came as children and requires that they have shown achievement in school.

What can I do if I am in removal proceedings but I qualify?

Individuals who are in removal proceedings and qualify for deferred action are eligible for deferred action immediately.  They need not wait for 60 days for CIS to provide procedures.  If you are currently in removal proceedings, you should seek a lawyer to obtain termination of removal proceedings and deferred action.  However, there may be circumstances where that is not the best counsel and you should discuss your options with your lawyer.

What if I have an old order of removal?

You still qualify and can apply to ICE for deferred action without waiting for 60 days for CIS to establish procedures.

How do I prove that I entered before the age of 16 and that I have been here for five years?

The easiest way is through an I-94 card showing admission through a port of entry after inspection by an immigration officer.  However, it is clear that many individuals who will qualify for DREAM Act deferred action will not be able to prove a lawful admission.  These individuals must produce documents that show that they were here before they turned 16.  These documents may include: school records, medical records, church records, immigration documents, bank statements, credit card bills, insurance records, dated receipts for purchases, utility bills, leases, tax returns, birth certificates of children born in U.S., marriage certificates in U.S., driving records,  letters from employers, ministers, or other organization  confirming your presence in the U.S., or dated photos.  This is list is not exclusive and other reliable evidence may be considered.

How do I prove that I was here on June 15, 2012?

It will not be necessary for an individual to show that she was here on that exact date.  Such presence may be inferred by evidence that an individual was in the U.S. prior to June 15 and remains in the U.S. at this time.  Applicants should gather documents as listed above that are dated as close to June 15, 2012 to satisfy this requirement.

What are the educational requirements?

To qualify, an individual must be currently in school or have graduated from high school or have obtained a GED, or are honorably discharged veterans of the Armed Forces or Coast Guard.

I am currently taking GED classes, does that count?

It may.  Early indications are that CIS will extend eligibility to those taking GED classes and registered to take the GED exam.  This is not certain yet and will be clarified in the coming weeks.  For now, it makes sense to register for the GED or GED classes.

What are the criminal exclusions to eligibility?

To be eligible, an applicant must have not been convicted of a felony, a significant misdemeanor offense, multiple misdemeanors, or otherwise present a threat to national security or public safety.

What is a felony?

Generally, a felony is any crime that can be punished by more than one year in prison.

What is a significant misdemeanor?

This is a new term introduced by the DHS announcement of deferred action and it has never been defined before in the law.  The DHS gave examples of offenses that it considers significant misdemeanors: offenses involving violence, threats or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny or fraud, driving under the influence of alcohol or drugs, obstruction of justice or bribery; unlawful flight from arrest, prosecution or the scene of an accident, unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.  This definition creates ineligibility for many minor offenses.  Many of these offenses would not render someone deportable or inadmissible.  The American Immigration Lawyers Association and other groups are lobbying DHS to take a more lenient approach to minor misdemeanors.  However, until that happens (if it does), the breadth of the offenses that can create ineligibility make it essential that anyone with a criminal record seek counsel before applying.

How many (nonsignificant) misdemeanors are too many?

According to the DHS, three misdemeanors that do not rise to the level of significant will render an individual ineligible for deferred action.

How can I find out if I have a criminal record?

An individuals’ arrest record or “rap sheet” may be obtained from the FBI.  You will be required to submit a form, a fingerprint sheet and $18 to the FBI.  Information can be found here: http://www.fbi.gov/about-us/cjis/background-checks/.

If I have arrests, what documents will I need?

You will need a “certified disposition.”  This document should be available from the courthouse where the criminal matter was resolved.  A disposition will indicate the result of the arrest whether that result is a dismissal, acquittal or conviction.

If I have no convictions, can I still be denied as a threat to public safety or national security?

Yes, as deferred action is entirely discretionary, certain individuals who have never been convicted of any offenses may find themselves ineligible.  Those with multiple arrests but no convictions could still be considered a threat to public safety.  Suspected gang members could be considered a danger.   Those suspected of relationships with terrorist organizations are also likely to be excluded.  Individuals with a very bad driving record can also be at risk.

If I have no convictions and am not a danger to national security of the public safety, can I still be denied?

Yes.  Again, since deferred action is discretionary, the DHS is allowed to take many factors into account.  These factors may include a history of immigration fraud, the use of false social security numbers, failure to support dependents or other negative factors present in any individual’s case.

What happens if I am approved?

Someone granted deferred action is eligible for employment authorization.  Employment authorization will also allow an individual to obtain a social security number and, usually, a driver’s license or state ID.  Deferred action will be granted in increments of two years and is renewable.

What happens if there is a change in Presidential administrations?

Since deferred action for DREAMers has been established and initiated by President Obama and Secretary of Homeland Security Janet Napolitano, a change in administration could mean a change in the policy.  Mitt Romney has not stated whether he would repeal the program.  He has stated that he is opposed to the DREAM Act and he supports laws like Arizona’s.  It seems to be a safe bet that a President Romney and his appointee would not support deferred actio0n for DREAMers.

If it is likely to be cancelled by a new administration, should I still apply?

That is up to you.  There is a risk in applying.  The information provided to the government in an application may be used by the government to commence removal proceedings.  By coming forward, DREAMers risk being able to remain in the U.S. without documentation.  For our opinion, please see https://liftedlamp.wordpress.com/2012/06/27/national-dream-act-graduation/.

What happens if I am denied?  Can I appeal?  Will I be placed into removal proceedings?

There is no appeal from a denial.  In addition, an individual may be placed into removal proceedings upon being denied.  People who are denied due to criminal issues, fraud or other significant negative factors should expect to be placed into removal proceedings.  While such individuals may qualify for relief from removal, the possibility of removal proceedings for these individuals must be taken seriously.  However, CIS has not yet stated what it intends to do with individuals who do not qualify (i.e. lack the five years) but do not present any significant negative factors.  Under current guidance, CIS does not place such individuals into removal proceedings.

What happens if I am stopped or arrested by immigration before I can apply?

Immigration & Customs Enforcement (ICE) has been instructed not to initiate removal proceedings against individuals who may qualify for DREAM Act deferred action.  If someone you know who seems to qualify for DREAM Act deferred action and is detained by ICE, you should immediately contact an attorney.

5 Responses to “Frequently Asked Questions about DREAM Act Deferred Action”

  1. Melody January 31, 2013 at 4:22 pm #

    Good. I agree.

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